COLOR. In Pleading. An apparent but legally insufficient ground of action admitted to subsist in the opposite party by the plead ing of one of the pirties to an action. 3 Sharswood, Blackstone, Comm. 309; 4 Barnew. & C. 547 ; 1 Moore & P. 307. To give color is to give the plaintiff credit for having an ap parent or prima" ,facie right of action, inde pendent of the matter introduced to destroy it, in order to introduce new matter in avoid ance of the declaration. It was necessary that all pleadings in confession and avoidance should give color. See 3 Sharswood, Blackst. Comm. 309, n.; 1 Chitty, Plead. 531.
Express color is a feigned matter pleaded by the defendant, from which the plaintiff seems to have a good cause, whereas he has in truth only an appearance or color of cause. Bacon, Abr. Trespass, I 4; 1 Chitty, Plead. 530. It was not allowed in the plaintiff to traverse the colorable right thus given ; and it thus be came necessary to answer the plea on which the defendant intended to rely.
Implied color is that which arises from the nature of the defence: as where the defence consists of matter of law, the facts being ad mitted but their legal sufficiency denied by matters alleged in the plea. 1 Chitty, Plead. 528; Stephen, Plead. 206.
By giving color the defendant could remove the decision of the case from before a jury I and introduce matter in a special plea, Which would otherwise oblige him to plead the gene ral issue. 3 Blackstone, Comm. 309.
The colorable right must be plausible or afford a supposititious right such as might in duce an unlearned person to imagine it suf ficient, and yet it must be in legal strictness inadequate to defeat the defendant's title as shown in the plea. Comyns, Dig. Pleading; Keilw. 1036; 1 Chitty, Plead. 531; 4 Dane, Abr. 552; Archbold, Plead. 211.
Personal Relatigns. By the South Caro lina act of 1740, all negroes and Indians (In dians in amity with the government, negroes, mulattoes, and mestizoes free at that time, excepted) are slaves and chattels personal.
O'Neall, Dig. of Negro Law of S. C. 5, 6, a 1, 2, 3. Under this statute, color is prima facie evidence of slavery, and it has been uni formly held that a negro, mulatto, or mestizo is a slave; but this rule does not apply in the case of Indians, who are regarded as free In dians in amity with the government. 2 Speers, So. C.105 ; 1 Rich. So. C. 224; Dudl. So. C. 174. Whenever the African taint is so far removed that upon inspection a party may fairly be pro nounced white, and such has been his pre vious reception in society and enjoyment of the privileges usually enjoyed by white people, the jury may rate and regard the party as white. The question of color may be decided without the intervention of a jury by the in spection of the judge. If the African blood be only one-eighth, the jury always find the party to be white; if between one-fourth and one-eighth, it is .plainly debatable ground. O'Neal], Dig. of Negro Law of S. C. 6, a 7, 8, 9; 2 Hill, So. C. 615, 616 ; 1 Speers, So. C. 270 ; 3 Rich. So. C. 136-141 ; 2 Bail. So. C. 560. The burden of proof of freedom rests upon the negro, mulatto, or mestizo claiming to be free. O'Neall, Dig. 21, p. 8'; Dudl. So. C. 174, 176.
Cruelty to slaves is prohibited by the act of 1740. Owners must furnish them with suf ficient clothing, wearing-apparel, and food. An owner cannot abandon his slave needing either medical treatment, care, food, or rai ment. O'Neal], Dig. 20, 21; Acts of 1858, p. 738, s. 25 ; Acts of 1856, p. 593, s. 27 ; 2 Brev. So. C. 129; 2 Speers, So. C. 408.